Citation Nr: 21070779 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-62 464 DATE: November 26, 2021 ORDER Entitlement to service connection for degenerative arthritis and degenerative disc disease of the lumbar spine with mild scoliosis is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's degenerative arthritis and degenerative disc disease of the lumbar spine with mild scoliosis is related to his active duty service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for degenerative arthritis and degenerative disc disease of the lumbar spine with mild scoliosis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1973 to July 1976. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied the claim of service connection for lumbar scoliosis with spondylosis and degenerative joint disease L3-5 scoliosis of the lower back. The Board remanded the matters in December 2018 and August 2021 for further development. As the Board is granting the claim of service connection in full, discussion of compliance with the Board's remand instructions is unnecessary. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran died in December 2020. The appellant, the Veteran's surviving spouse, was substituted in January 2021 as the claimant for purposes of adjudicating any claims pending at the time of the Veteran's death. Entitlement to service connection for degenerative arthritis and degenerative disc disease of the lumbar spine with mild scoliosis Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that he experienced back pain symptoms in service while working on the flight line with heavy hoses as a Refueling Specialist, and that these symptoms have continued since his separation from service. An x-ray taken in service in October 1974 noted the Veteran had mild lumbar scoliosis convex to the right. In January 2016, a VA examiner found that spine curvature is a hereditary disorder that usually progresses to chronic back problems under normal life circumstances, no matter what (barring severe high force back trauma or surgery). The examiner noted that to determine aggravation on a subject such as this would require a very specific physical examination and radiographic ongoing evidence followed over time. Since there was none of this evidence present in this case, aggravation could not be determined without resorting to mere speculation. In June 2020, a VA physician found that there was no record of back injury, back problems, or back pathology prior to the Veteran's military service, during military service, or within one-year of separation from service. The physician noted that the Veteran reported hip, knee, neck, and shoulder pain reported in 2002, but did report a back condition. The physician additionally found that the Veteran's first report of back problem was in 2008, 32 years after he separated from service. Thus, it was less likely than not that back condition incurred in or caused by service. In August 2020 VA addendum opinion, a VA physician could not find clear or unmistakable (obvious, manifest, and undebatable) evidence that any of the Veteran's back disabilities pre-existed entrance into service. There was no record of back injury, back problems, or back pathology prior to military. The physician noted that the Veteran's first report of a back problem was in 2008, 32 years after he separated from service. In addition, the physician reviewed the articles submitted by the Veteran on adult degenerative scoliosis versus adolescent scoliosis. The physician indicated that the Veteran's current back condition is degenerative disc disease and degenerative joint disease that first manifested in 2008, and noted progression of his degenerative changes from his 2008 back x-ray and 2015 back x-ray. Moreover, the Veteran less likely had right lower quadrant abdominal pain in 1974 manifest for any of the Veteran's back disabilities as there was a lack of pathophysiologic mechanism for his degenerative scoliosis to relate to his 1974 abdominal pain. Thus, it was less likely than not that the Veteran's currently diagnosed degenerative joint disease of lumbosacral spine, with scoliosis concavity to the right, was caused by or symptomatic during military service. In October 2020 in a VA addendum opinion, a VA physician found that the Veteran currently had numerous lesions in spine, pelvis, and femurs from his metastatic prostate cancer. There was no mention of degrees of curvature in x-ray reports, as discussed in adult/juvenile scoliosis articles. Curvature of spine can be related to body position and imaging techniques, as well as juvenile and adult scoliosis. Thus, there was no consistent right scoliosis, with noted discrepancy of right versus left mild convexity in 1974 and 2008. Therefore, the physician concluded that the Veteran's current adult curvature of the back is related to both a mild curvature that existed to the right in 1974, as well as a mild curvature in the left in 2008, 32 years after separation from service. The Veteran's increased back pain for two months in 2008 was presumably related to his degenerative changes that developed over the years after separation from service. As the Veteran's chronic back symptoms began in 2008, 32 years after separation from service, the physician found that his back changes prior to metastatic prostate cancer were more likely than not related to degenerative changes over the years than to the mild convexity of his back to the right in 1974. The Veteran's current back pain and functional limitations were more likely than not related to his metastatic prostate cancer, with metastases in his hips, pelvis, and femurs. In October 2021, a VA physician found that the Veteran's diagnosed lumbar conditions were less likely than not due to the Veteran's active duty service and mild scoliosis. There were no records during active duty nor in years immediately following separation from service to suggest significant or chronic back issues stemming from service. Per VA treatment records, the Veteran stated that he had strained his back a few times while in service and was treated with medication. The Veteran served from 1973 to 1976 and was found to have degenerative changes in 2008, which was a 30 year gap from separation from service, and at the age of 50. For the following reasons, entitlement to service connection for degenerative arthritis and degenerative disc disease of the lumbar spine with mild scoliosis is warranted. A January 2016 VA examination report noted the Veteran's diagnoses of degenerative arthritis and degenerative disc disease of the lumbar spine with mild scoliosis. Thus, the Veteran meets the current disability requirement. Every Veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. The term "noted," in 38 U.S.C. § 1111, refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304 (b)(1). As no back abnormalities were noted at entry, the Veteran is presumed to have been sound in this regard. Moreover, the Veteran submitted articles that addressed the difference between juvenile and adult scoliosis. As there was no evidence of preservice existence of juvenile scoliosis, there is no need to further address this literature. Furthermore, there is no clear and unmistakable evidence of lack of aggravation as the Veteran's statements regarding continuous back pain symptoms in and since service are competent and credible. The Veteran has consistently reported throughout the appeal period that he experienced back pain symptoms in and since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan, 451 F.3d at 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). Thus, the Veteran's reports are credible and competent as there is nothing to explicitly contradict them. The January 2016, June 2020, August 2020, October 2020, and October 2021 VA opinions are of little probative weight as they relied on the lack of contemporaneous medical evidence without considering the Veteran's lay statements regarding continuous back pain symptoms both in and since his separation from service. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). To the extent that the grant of service connection in this matter is based primarily on lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Id. at 1335. At this point, the Board could remand the claim for a VA examination or opinion. However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (Order), aff'd per curiam sub nom. Gardner-Dickson v. McDonough, No. 2021-1462, 2021 U.S. App. LEXIS 33000 (Fed. Cir. Nov. 5, 2021) (Order) (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'" (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's degenerative arthritis and degenerative disc disease of the lumbar spine with mild scoliosis are related to his active duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for degenerative arthritis and degenerative disc disease of the lumbar spine with mild scoliosis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.